Lynne Bernabei was interviewed on Federal News Radio about the recent decision of the U.S. Merit System Protection Board on the appeal brought by two Department of Justice prosecutors. The prosecutors had been disciplined for failing to turn over key evidence in the criminal case brought against U.S. Senator Ted Stevens.
The show host, Tom Temin, also pointed out that because of the high profile nature of the misconduct by Senator Stevens there may have been political pressure to hold someone accountable and step up the time frame for the findings. Had the proper disciplinary procedures been followed, the Affordable Health Care Act may not have been passed, because Senator Stevens likely would have been reelected.
The MSPB, however, reversed the discipline on the grounds that DOJ improperly allowed their supervisor to decide the discipline, instead of having an agency attorney outside the supervisory chain make that decision. The MSPB did recognize that: “It may seem at first glance to defy common sense not to subject individuals engaged in what was characterized as reckless behavior to disciplinary action, especially when that behavior so publicly compromised the justice system with the consequence of interfering with the electoral process.” However, the DOJ was required to follow its rules in imposing discipline on its employees, and its failure to do so resulted in a suspension greater than warranted.
Ms. Bernabei believes this is a black eye for the Department of Justice; that they should be able to police themselves. It isn’t that the two prosecutors shouldn’t have been disciplined, but that the DOJ should have investigated further and looked at the higher-ups within the Department.
“I think these issues of prosecutorial misconduct are very serious, and I’m not discounting them. In fact, I’m advocating there should a more thorough investigation of who was responsible, because this case was directed at the highest level of the Justice Department, it wasn’t just these two lawyers who did it. So I think what MSPB found is a misuse of the internal disciplinary system in order to blame things on them when perhaps others were at fault,” says Ms. Bernabei.
